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1 FLRA No. 111
VETERANS ADMINISTRATION CENTER,
LEAVENWORTH, KANSAS
Respondent
and
PRISCILLA M. CLOUSE
Complainant
Assistant Secretary
Case No. 60-5847(CA)
DECISION AND ORDER
ON FEBRUARY 26, 1979, ADMINISTRATIVE LAW JUDGE JAMES J. BUTLER ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE COMPLAINANT FILED
EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER AND THE RESPONDENT FILED AN ANSWER IN BRIEF.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040 , WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, INCLUDING THIS COMPLAINANT'S EXCEPTIONS AND THE RESPONDENT'S
ANSWERING BRIEF, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS ONLY TO THE EXTENT
CONSISTENT HEREWITH. /1/
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY FINDS THAT
COMPLAINANT CLOUSE'S PARTICIPATION WITH OTHER EMPLOYEES IN A "GROUP
GRIEVANCE" WHICH WAS PREPARED AND PRESENTED TO THE ACTIVITY BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES IS PROTECTED ACTIVITY UNDER
SECTION 1(A) OF THE EXECUTIVE ORDER, WHICH GUARANTEES THE RIGHT "WITHOUT
FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR
ORGANIZATION . . ." THE GRIEVANCE HEREIN WAS PROCESSED BY CLOUSE, AND
OTHER EMPLOYEE REPRESENTATIVES, IN CONJUNCTION WITH AFGE LOCAL 85, THE
EXCLUSIVE REPRESENTATIVE OF SOME OF THE EMPLOYEES. AFTER THE GRIEVANCE
WAS REDUCED TO WRITING BY A VICE PRESIDENT OF THE UNION, IT WAS
PRESENTED TO THE RESPONDENT BY THE AFGE, "AS THE REPRESENTATIVE OF THIS
GROUP GRIEVANCE," AND BY THE COMPLAINANT AND TWO OTHER EMPLOYEE
REPRESENTATIVES. THUS, IN THE AUTHORITY'S VIEW, CLOUSE CLEARLY WAS
ASSISTING A LABOR ORGANIZATION, THE AFGE, BY HER PARTICIPATION IN THIS
MATTER CONCERNING EMPLOYEE WORKING CONDITIONS.
SUBSEQUENT TO CLOUSE'S INVOLVEMENT IN THIS PROTECTED ACTIVITY, SHE
RECEIVED A WRITTEN COUNSELING WHICH BECAME PART OF HER RECORD, AND WAS
TRANSFERRED TO ANOTHER WARD. THE ACTIVITY'S EXPRESSED REASON FOR THESE
SEVERE PENALTIES WAS UNREST ON THE WARD EVIDENCED BY CLOUSE'S FAILURE TO
ACKNOWLEDGE A QUESTION OF A NURSE-TRAINEE. IT IS SIGNIFICANT, IN THE
AUTHORITY'S VIEW, THAT THESE SEVERE PENALTIES WERE ADMITTEDLY IN
RESPONSE TO THE FIRST SPECIFIC INCIDENT WHICH EVIDENCED THE "UNREST"
THAT WAS THE SUBJECT OF THE GROUP GRIEVANCE. MOREOVER, THE CHIEF OF
NURSING SERVICES, WHO DETERMINED THE PENALTIES, TESTIFIED THAT CLOUSE
WAS AN "EXCELLENT" NURSE, AND THERE IS NO EVIDENCE OF ANY OTHER CONDUCT
BY CLOUSE WHICH WOULD JUSTIFY SUCH HARSH PENALTIES.
THE SEVERITY OF THE PENALTIES, THEIR TIMING, AND THEIR CONNECTION
WITH THE SUBJECT OF THE GRIEVANCE LEADS THE AUTHORITY TO CONCLUDE THAT
THE MISCONDUCT WAS A PRETEXT, OR AT MOST ONLY AN ADDITIONAL REASON FOR
PUNISHMENT, WHICH WAS MOTIVATED AT LEAST IN PART BY HER PROTECTED
ACTIVITY. WHEN ANTI-UNION CONSIDERATIONS HAVE THUS BEEN SHOWN TO HAVE
PLAYED AT LEAST A PART, A SECTION 19(A)(2) VIOLATION WILL BE FOUND EVEN
WHERE A LEGITIMATE BASIS FOR MANAGEMENT ACTION EXISTS. HEW, SOCIAL
SECURITY ADMINISTRATION, SAN JUAN, PUERTO RICO, A/SLMR 1127(1978). THE
AUTHORITY CONCLUDES, THEREFORE, THAT THE PUNISHMENT OF CLOUSE, BASED AT
LEAST IN PART ON HER PARTICIPATION IN PROTECTED ACTIVITY, VIOLATED
SECTION 19(A)(2) AND (1) OF THE ORDER.
ORDER
PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE VETERANS ADMINISTRATION CENTER, LEAVENWORTH, KANSAS, SHALL:
1. CEASE AND DESIST FROM:
(A) DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY GIVING WRITTEN
COUNSELINGS OR TRANSFERS TO PRISCILLA M. CLOUSE, OR ANY OTHER EMPLOYEE,
WHERE SUCH PUNISHMENT IS MOTIVATED IN WHOLE OR IN PART IN RETALIATION
FOR ASSISTING A LABOR ORGANIZATION IN THE PRESENTATION OF A GRIEVANCE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) REMOVE OR EXPUNGE FROM ITS FILES THE WRITTEN COUNSELING GIVEN
PRISCILLA M. CLOUSE ON JANUARY 5, 1978, OR ANY REFERENCE THERETO, AND
SUBMIT TO PRISCILLA M. CLOUSE A WRITTEN ACKNOWLEDGEMENT OF THAT ACTION.
(B) OFFER PRISCILLA M. CLOUSE THE OPPORTUNITY TO RETURN TO HER PRIOR
POSITION ON WARD 5-W OF THE VETERANS ADMINISTRATION CENTER, LEAVENWORTH,
KANSAS, IF SHE SO CHOOSES.
(C) POST AT THE VETERANS ADMINISTRATION CENTER, LEAVENWORTH, KANSAS,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS,
THEY SHALL BE SIGNED BY THE DIRECTOR OF THE VETERANS ADMINISTRATION
CENTER, LEAVENWORTH, KANSAS, AND THEY SHALL BE POSTED AND MAINTAINED BY
HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING
ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
CENTER DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES
ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT IN ASSISTANT
SECRETARY CASE NO. 60-5847(CA) FOUND NOT TO BE VIOLATIVE OF THE
EXECUTIVE ORDER BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 20, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY /2/
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO DECISION AND ORDER OF
THE
FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY GIVING
WRITTEN COUNSELINGS OR TRANSFERS TO PRISCILLA M. CLOUSE, OR ANY OTHER
EMPLOYEE, WHERE SUCH PUNISHMENT IS MOTIVATED IN WHOLE OR IN PART IN
RETALIATION FOR ASSISTING A LABOR ORGANIZATION IN THE PRESENTATION OF A
GRIEVANCE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL REMOVE OR EXPUNGE FROM OUR FILES THE WRITTEN COUNSELING GIVEN
PRISCILLA M. CLOUSE ON JANUARY 5, 1978, AND ALL REFERENCES THERETO, AND
SUBMIT TO PRISCILLA M. CLOUSE A WRITTEN ACKNOWLEDGEMENT OF THAT ACTION.
WE WILL OFFER PRISCILLA M. CLOUSE THE OPPORTUNITY TO RETURN TO HER
PRIOR POSITION ON WARD-5 OF THE VETERANS ADMINISTRATION CENTER,
LEAVENWORTH, KANSAS, IF SHE SO CHOOSES.
. . .
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
CITY CENTER SQUARE, 1100 MAIN STREET, SUITE 680, KANSAS CITY, MO. 64105,
AND WHOSE TELEPHONE NUMBER IS: (816) 374-2199.
DIANA M. BLOSS
STAFF ATTORNEY AND
DONALD W. MIRSCH
LABOR RELATIONS SPECIALIST
VETERANS ADMINISTRATION
CENTRAL OFFICE
810 VERMONT AVENUE, N.W.
WASHINGTON, D.C. 20420
FOR THE RESPONDENT
WILLIAM C. KIRBY
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
3625 MEYER BOULEVARD
KANSAS CITY, MISSOURI 64132
FOR THE COMPLAINANT
BEFORE JAMES J. BUTLER
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS CASE AROSE AS THE RESULT OF A COMPLAINT FILED BY MS. PRISCILLA
CLOUSE ON OCTOBER 30, 1977, ALLEGING THAT MANAGEMENT AT VETERANS
ADMINISTRATION MEDICAL CENTER, LEAVENWORTH, KANSAS (VAMC) VIOLATED
SECTIONS 19(A)(1) AND (2) OF EXECUTIVE ORDER NO. 11491, AS AMENDED
(HEREIN CALLED "THE ORDER"). COMPLAINANT ALLEGES THAT SHE WAS
COUNSELLED AND TRANSFERRED FROM ONE WARD TO ANOTHER AT VAMC AS A RESULT
OF HER PARTICIPATION IN A GROUP GRIEVANCE, AND THAT SUCH TRANSFER
CONSTITUTED AN ACT OF REPRISAL FOR UNION ACTIVITY IN VIOLATION OF
SECTION 19(A)(2) OF THE ORDER. COMPLAINANT FURTHER ALLEGES THAT SEVERAL
STATEMENTS WERE MADE BY MANAGEMENT THAT TENDED TO SHOW ANTI-UNION ANIMUS
AND WOULD RESTRAIN OR COERCE EMPLOYEES OF VAMC IN THEIR EXERCISE OF
RIGHTS ASSURED UNDER THE ORDER IN VIOLATION OF SECTION 19(A)(1) OF THE
ORDER.
ISSUES
THERE ARE FOUR ISSUES PRESENTED. THEY ARE:
I. WHETHER MANAGEMENT AT VAMC COUNSELLED AND TRANSFERRED COMPLAINANT
BECAUSE OF HER PARTICIPATION IN A GROUP GRIEVANCE;
II. IF SHE WAS COUNSELLED AND TRANSFERRED FOR THE REASON SHE
ASSIGNS, WHETHER SUCH COUNSEL AND TRANSFER CONSTITUTES A VIOLATION OF
SECTION 19(A)(1) OR E2) OF THE ORDER;
III. WHETHER MANAGEMENT AT VAMC ACTED DISCRIMINATORILY AGAINST
COMPLAINANT BECAUSE OF HER UNION ACTIVITY IN VIOLATION OF SECTION
19(A)(2) OF THE ORDER; AND,
IV. WHETHER STATEMENTS OR CONDUCT OF SAID MANAGEMENT WERE SUCH AS
WOULD TEND TO INTERFERE WITH, RESTRAIN OR COERCE AN EMPLOYEE IN THE
EXERCISE OF RIGHTS ASSURED BY THE ORDER IN VIOLATION OF SECTION 19(A)(1)
THEREOF.
MANAGEMENT'S POSITION
IT IS THE CONTENTION OF MANAGEMENT THAT:
I. IT DID NOT COUNSEL AND TRANSFER COMPLAINANT BECAUSE OF HER
PARTICIPATION IN ANY GROUP GRIEVANCE;
II. EVEN IF IT HAD COUNSELLED AND TRANSFERRED COMPLAINANT FOR THE
REASON SHE STATES, SUCH ACTION IN ITSELF WOULD NOT BE VIOLATIVE OF
SECTION 19(A)(1) OF THE ORDER;
III. WHERE THERE IS NO SHOWING OF EMPLOYEE PARTICIPATION IN ACTIVITY
PROTECTED BY THE ORDER, NO SHOWING OF MANAGEMENT'S KNOWLEDGE OF ANY
UNION ACTIVITY CONDUCTED BY THE EMPLOYEE AND NO SHOWING OF ANTI-UNION
ANIMUS ON THE PART OF MANAGEMENT, IT CANNOT BE CONCLUDED THAT AN ACTION
OF MANAGEMENT WAS DISCRIMINATORILY BASED ON THE EMPLOYEE'S UNION
ACTIVITY IN VIOLATION OF SECTION 19(A)(2) OF THE ORDER; AND,
IV. COMPLAINANT HAS SHOWN NO STATEMENTS OR CONDUCT ATTRIBUTABLE TO
MANAGEMENT WHICH WOULD TEND TO INTERFERE WITH, RESTRAIN OR COERCE AN
EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER.
STATEMENT OF FACTS
AT ALL TIMES RELEVANT TO THE INSTANT PROCEEDING, THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES (NFFE), LOCAL 1684, HELD EXCLUSIVE
RECOGNITION FOR A UNIT OF ALL PROFESSIONAL EMPLOYEES AT THE ACTIVITY
INVOLVED HERE. COMPLAINANT, A REGISTERED NURSE, WAS A MEMBER OF THIS
UNION. DURING THE SAME PERIOD THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFGE), LOCAL 85 HELD EXCLUSIVE RECOGNITION FOR A UNIT OF
NONPROFESSIONAL EMPLOYEES AT THE ACTIVITY.
IMMEDIATELY PRIOR TO JANUARY 15, 1978, COMPLAINANT WORKED UNDER THE
DIRECT SUPERVISION OF MRS. MARIE CHRISTOFFERSON, HEAD NURSE FOR WARD 5-W
WHERE COMPLAINT WAS THEN ASSIGNED. THE LINE OF SUPERVISION FROM MRS.
CHRISTOFFERSON WAS TO MS. CHARLOTTE DAVIS, ASSISTANT CHIEF OF NURSING
AND TO MRS. HELEN MERRIAM, CHIEF OF NURSING SERVICES. ALSO, AS WILL BE
SEEN, A NURSE INSTRUCTOR, MRS. DORIS RIGBY, HAD LIMITED AUTHORITY OVER
REGISTERED NURSES WHERE MATTERS OF TRAINING WERE INVOLVED.
DURING THE MONTHS OF AUGUST AND SEPTEMBER, 1977, STAFF MORALE ON WARD
5-W HAD DETERIORATED TO THE POINT THAT SEVERAL NURSES FOUND IT NECESSARY
TO MEET WITH MRS. CHRISTOFFERSON TO DISCUSS THE WARD PROBLEMS AS THEY
PERCEIVED THEM. IT APPEARS THAT THERE WAS LITTLE OR NO RESOLUTION OF
THE SITUATION AT THIS MEETING.
ON OR ABOUT OCTOBER 27, 1977, A WRITTEN COMPILATION OF REPORTED
INCIDENTS, STATEMENTS OF CONCERN AND DISSATISFACTION WERE PRESENTED TO
MS. DAVIS BY EDA PULCHNEY, FIRST VICE PRESIDENT OF AFGE "AS THE
REPRESENTATIVE FOR THIS GROUP GRIEVANCE," BY THE COMPLAINANT ON BEHALF
OF THE REGISTERED NURSES, BY DORIS TAYLOR ON BEHALF OF THE LICENSED
PRACTICAL NURSES AND BY RITA ROLLINS ON BEHALF OF THE NURSE ASSISTANTS.
IT IS INTERESTING TO NOTE THAT WHILE EVERYONE SEEMED TO BE AWARE OF
THE FACT THAT AFGE COULD NOT REPRESENT THE PROFESSIONAL REGISTERED
NURSES IN ANY FORMAL UNION CAPACITY, NO MEMBER OF THE PROFESSIONAL
EMPLOYEE GROUP EVER SOUGHT THE AID OF THE NFFE. IT WAS MANAGEMENT WHO
FINALLY BROUGHT THE PROFESSIONAL UNION INTO THE CONTROVERSY SO THAT THE
UNION WOULD BE PROPERLY REPRESENTED IN THE MATTER. ALTHOUGH IT IS NOT
CLEAR HOW COMPLAINANT WAS DESIGNATED AS THE REPRESENTATIVE OF THE
REGISTERED NURSES ASSIGNED TO WARD 5-W, IT IS VIVIDLY CLEAR THAT
COMPLAINANT WAS NEVER DESIGNATED AS, NOR DID SHE HOLD HERSELF OUT TO BE,
A REPRESENTATIVE OF HER UNION.
IT IS EVEN MORE INTERESTING TO NOTE THAT AT THE TIME THE GRIEVANCE
GROUP PRESENTED THEIR COMPLAINTS, AFGE HAD NO CONTRACT WITH THE
ACTIVITY. QUITE OBVIOUSLY, THEREFORE, THE GRIEVANCE COULD NOT
CONTEMPLATE THE INTERPRETATION OR APPLICATION OF THE TERMS AND
PROVISIONS OF ANY AGREEMENT BETWEEN THE ACTIVITY AND AFGE. COMPLAINANT
ADMITTED THAT HER COMPLAINTS ON HER OWN BEHALF AND OTHERS, WHATEVER HER
REPRESENTATIONAL STATUS MAY HAVE BEEN, UNION OR PROFESSIONAL, EITHER OR
BOTH, WERE COMPLETELY UNRELATED TO ANY INTERPRETATION OR APPLICATION OF
THE AGREEMENT BETWEEN HER UNION, NFFE, AND THE ACTIVITY.
TURNING NOW TO THE PROBLEMS ON WARD 5-W WHICH GAVE RISE TO THE
GRIEVANCE, IT APPEARS FROM THE RECORD THAT THE COMPLAINTS CENTERED
AROUND MRS. CHRISTOFFERSON IN HER PATIENT CARE DECISIONS AND SUPERVISION
OF PERSONNEL. AFTER MS. DAVIS WAS PRESENTED WITH THE COMPILATION OF
WRITTEN COMPLAINTS WHICH AFGE HAD DRAFTED FOR THE GROUP INVOLVED, SHE
TURNED, IN HER IMMEDIATE SUPERVISOR'S ABSENCE, TO ROBERT WESTFALL,
PERSONNEL OFFICER, FOR ASSISTANCE. MR. WESTFALL EXPLAINED AT THE
HEARING ON THE ALLEGED UNFAIR LABOR PRACTICE THAT INASMUCH AS MEMBERS OF
BOTH BARGAINING UNITS WERE INCLUDED, AND NO MATTERS OF CONTRACT
INTERPRETATION OR APPLICATION WERE AT ISSUE, THE PRESENTATION OF
COMPLAINTS WAS NOT A "GRIEVANCE" UNDER THE TERMS OF THE ONLY NEGOTIATED
AGREEMENT THEN IN EFFECT, BUT RATHER A WRITTEN INDICATION OF EMPLOYEE
DISSATISFACTION IN ONE AREA OF THE AGENCY'S FACILITY. MR. WESTFALL DID,
HOWEVER, CONSIDER THE MATTER AS AN "AGENCY GRIEVANCE" EVEN THOUGH IT DID
NOT EXACTLY CONFORM WITH PAST PROCEDURES. THE GRIEVANTS WERE THEN
ADVISED THAT THEY WOULD BE FURNISHED WITH A WRITTEN RESPONSE TO THEIR
CONCERNS. THEY WERE ALSO TOLD THAT NO DISCIPLINARY ACTION WOULD FOLLOW
AS A RESULT OF THEIR COMPLAINTS. THEREAFTER, MRS. MERRIMAN PREPARED A
FORMAL RESPONSE WHICH SHE CHARACTERIZED AS A "SYNTHESIS" OF THE
ALLEGATIONS. MRS. MERRIMAN TESTIFIED THAT SHE FOUND THE COMPLAINTS TO
BE ONLY GENERAL IN NATURE AND NOT ALTOGETHER FACTUAL AND THAT
IDENTIFICATION OF SPECIFIC PROBLEMS WAS DIFFICULT.
ON NOVEMBER 22, 1978, THE RESPONSE PROMISED WAS SUBMITTED TO THE
GRIEVANTS THROUGH BENNY MALINSON, AN OFFICER OF AFGE, AND LESLIE
SAMPSON, A REGISTERED NURSE IN SURGICAL INTENSIVE CARE WHO WAS ACCORDING
TO MR. WESTFALL'S PERSONNEL RECORDS AND EXPERIENCE, THE ONLY DESIGNATED
REPRESENTATIVE OF THE PROFESSIONAL UNION, NFFE. A BRIEF MEETING WAS
THEN HELD AND THE REPRESENTATIVES THEREAFTER LEFT TO MEET WITH MEMBERS
OF THE GRIEVANCE GROUP ON DUTY. AFTER A SHORT TIME MR. MALINSON AND MS.
SAMPSON RETURNED TO MRS. MERRIMAN'S OFFICE AND ADVISED HER THAT THE
EMPLOYEES CONSULTED WERE GOING TO "DROP" THE GRIEVANCE PROCEEDING.
MANAGEMENT, HOWEVER, IN RESPONSE TO THE REQUEST OF GRIEVANTS TRANSFERRED
ONE ERIC HANSON AND COUNSELLED MRS. CHRISTOFFERSON WHO WAS TO RETAIN
HER POSITION AS HEAD NURSE, WARD 5-W.
THE UNREST ON WARD 5-W CONTINUED, HOWEVER, EVEN WHILE MR.S
CHRISTOFFERSON WAS BEING COUNSELLED. THERE WAS, ACCORDING TO MRS.
MERRIMAN'S TESTIMONY, A DIVISION OF STAFF AND "TAKING SIDES." MRS.
MERRIMAN FELT THAT "(T)HESE KINDS OF BEHAVIOR RESULT IN EATING UP TIME
(AND) STAFF DISSATISFACTION" WHICH JEOPARDIZES PATIENT CARE. MRS.
MERRIMAN STATED THAT ACTION OF SOME KIND ON HER PART WAS REQUIRED "IN
ORDER TO RESOLVE THE KINDS OF ATMOSPHERE THAT WERE ON THAT (WARD 5-W)
UNIT." MRS. MERRIMAN STEADFASTLY INSISTED, HOWEVER, THAT SHE WAS UNAWARE
OF THE EXACT NATURE AND CAUSE OF THE UNREST ON THE WARD PRIOR TO THE
FOLLOWING DESCRIBED INCIDENT WHICH SHE ASSIGNS AS THE PRIMARY REASON WHY
COMPLAINANT WAS GIVEN A WRITTEN LETTER OF COUNSELLING AND TRANSFERRED.
ON JANUARY 5, 1978, AND AFTER SHE HAD BECOME AWARE OF THE CONTINUING
UNHAPPY SITUATION ON WARD 5-W, MRS. MERRIMAN WAS CONSULTED BY MRS. DORIS
RIGBY, A MASTERS DEGREE NURSE INSTRUCTOR, CONCERNING COMPLAINANT'S
FAILURE TO ACKNOWLEDGE AND RESPOND TO A QUESTION OF A NEWLY EMPLOYED
NURSE-TRAINEE. COMPLAINANT WAS TEMPORARILY ACTING AS THE HEAD NURSE AT
THE PARTICULAR TIME IN QUESTION BUT WAS ON AND ABOUT HER OWN DUTIES WHEN
SHE WAS ASKED THE QUESTION RELATED TO THE MEDICATION TO BE GIVEN A
PARTICULAR PATIENT IN THE WARD.
MRS. MERRIMAN INSTRUCTED MRS. RIGBY TO GIVE COMPLAINANT A WRITTEN
LETTER OF COUNSELLING WHICH SHE SUBSEQUENTLY DID. MRS. MERRIMAN
TESTIFIED THAT COMPLAINAANT'S FAILURE TO RESPOND TO THE TRAINEE'S
QUESTION WAS THE KIND OF LACK OF COOPERATION WHICH HAD CAUSED HER
CONCERN IN THE PAST BUT IT WAS THE FIRST SPECIFIC INCIDENT REPORTED TO
HER. IT WAS THEN DECIDED TO TRANSFER COMPLAINANT TO WARD 2-E, EFFECTIVE
JANUARY 15, 1978.
ACCORDING TO MRS. MERRIMAN'S EVALUATION, THE STAFF MORALE IMPROVED
FOLLOWING COMPLAINANT'S TRANSFER AND THERE WAS NOT THE "DIVISION OF
STAFF" WHICH WAS OCCURRING PRIOR TO HER DEPARTURE.
THE RECORD ALSO REFLECTS THE FACT THAT COMPLAINANT WAS AGAIN
TRANSFERRED TO ANOTHER WARD (2-E TO 2-W) BECAUSE OF PROBLEMS EXISTING ON
THE WARD TO WHICH SHE WAS FIRST TRANSFERRED. ACCORDING TO COMPLAINANT,
SHE WAS TRANSFERRED THE SECOND TIME "BECAUSE SHERRY CLEVENGER (HEAD
NURSE ON 2-E) WAS AFRAID OF WHAT (COMPLAINANT) WAS GOING TO DO TO HER
WARD" AND BECAUSE SHE WAS BLAMED FOR ANOTHER GRIEVANCE FILED BY ONE OF
HER FRIENDS.
FINDINGS OF FACT
AFTER CONSIDERING THE WHOLE RECORD FOR DECISION IN THIS MATTER, I
FIND:
I. THAT COMPLAINANT HEREIN, PRISCILLA M. CLOUSE, RECEIVED A WRITTEN
COUNSELLING AND WAS THEREAFTER TRANSFERRED TO ANOTHER WARD IN VAMC
WHEN,
ON JANUARY 5, 1978, WHILE IN CHARGE OF WARD 5-W DURING HEAD NURSE
CHRISTOFFERSON'S TEMPORARY ABSENCE, SHE FAILED TO RESPOND TO A
LEGITIMATE INQUIRY BY A NURSE-TRAINEE CONCERNING MEDICATION TO BE GIVEN
A PATIENT UNDER CARE IN THE WARD;
II. THAT COMPLAINANT WAS TRANSFERRED BY THE CHIEF OF NURSING
SERVICES IN ORDER TO ALLEVIATE IN SOME MEASURE THE DISSENTION IN THE
WARD WHICH WAS HAMPERING PATIENT CARE.
A. THE REFUSAL BY COMPLAINANT TO ANSWER AN INQUIRY BY A NEW EMPLOYEE
MERELY SERVED TO DEMONSTRATE THE OVERALL LACK OF COOPERATION AMONG THE
STAFF IN THE WARD WHICH THE CHIEF OF NURSING SERVICES BY SOME MANNER
WITHIN HER DISCRETION WAS BOUND TO CORRECT.
B. THE IMMEDIATE MEANS THEN AT HAND WAS THE TRANSFER OF COMPLAINANT
TO ANOTHER WARD (ODDLY ENOUGH, IT WAS BY MEANS OF A TRANSFER WHICH
COMPLAINANT SOUGHT TO REMOVE THE PROBLEMS SHE FELT WERE OCCASIONED BY
MRS. CHRISTOFFERSON'S PRESENCE IN THE WARD);
III. THE GRIEVANCE IN WHICH COMPLAINANT PARTICIPATED IN BOTH AS AN
INDIVIDUAL AND IN A REPRESENTATIONAL CAPACITY WAS OUTSIDE THE NEGOTIATED
AGREEMENT BETWEEN COMPLAINANT'S UNION AND VAMC;
IV. THE GRIEVANCE IN WHICH COMPLAINANT PARTICIPATED, ALTHOUGH IT DID
NOT STRICTLY CONFORM WITH AGENCY PROCEDURES, WAS NEVERTHELESS TREATED
AND RESPONDED TO BY VAMC AS AN AGENCY GRIEVANCE;
V. COMPLAINANT AT NO TIME HELD HERSELF OUT TO BE NOR WAS SHE IN FACT
A REPRESENTATIVE OF HER UNION;
VI. THE COMPLAINANT'S PARTICIPATION IN THE GRIEVANCE WAS NOT A UNION
ACTIVITY;
VII. VAMC MANAGEMENT WAS AWARE THAT AS A GRIEVANT OR GRIEVANT
REPRESENTATIVE SHE WAS NOT A PARTICIPANT IN ANY UNION ACTIVITY;
VIII. VAMC MANAGEMENT SHOWED NO ANIMUS AGAINST ANY UNION ACTIVITY ON
THE PART OF ANYONE INVOLVED IN THE GRIEVANCE PROCEEDING IN QUESTION;
IX. VAMC MANAGEMENT TOOK NO ACTION AGAINST COMPLAINANT BECAUSE OF
ANY UNION ACTIVITY.
CONCLUSIONS OF LAW
THE ASSISTANT SECRETARY IN VA CANTEEN SERVICE, VA HOSPITAL, PHOENIX,
ARIZONA, A/SLMR CASE NO. 883 (AUGUST 26, 1977) ADOPTED THE DECISION OF
THE ADMINISTRATIVE LAW JUDGE (CASE NO. 72-6081, APRIL 4, 1977) WHEREIN
IT WAS OBSERVED THAT:
THE COMPLAINANT CORRECTLY STATES THAT TO FIND A VIOLATION OF SECTIONS
19(A)(1) AND (2) IN
THIS CASE IT MUST BE FOUND THAT (1) (COMPLAINANT) WAS ENGAGING IN
UNION ACTIVITY, (2) THE
RESPONDENT HAD KNOWLEDGE OF HER UNION ACTIVITY, (3) THE RESPONDENT
SHOWED ANIMUS AGAINST HER
UNION ACTIVITY OR AGAINST UNION ACTIVITY IN GENERAL, AND (4) THE
RESPONDENT TOOK ACTION
AGAINST HER BECAUSE OF HER UNION ACTIVITY.
I. WITH RESPECT TO THE FIRST REQUISITE ELEMENT OF A VIOLATION OF
SECTION 19(A)(1) AND (2), THERE WAS NO UNION ACTIVITY SHOWN IN WHICH
COMPLAINANT PARTICIPATED. OTHER THAN THE PAYMENT OF DUES, SHE EXHIBITED
LITTLE OR NO INTEREST IN HER UNION. SHE STATED THAT SHE "ABSOLUTELY"
DID NOT REPRESENT THE UNION IN ANY CAPACITY. INSTEAD, AS THE RECORD
PLAINLY REFLECTS, COMPLAINANT'S PARTICIPATION IN THE GRIEVANCE, BY HER
OWN ADMISSION, WAS SOLELY IN HER OWN BEHALF AND IN BEHALF OF CERTAIN
OTHER REGISTERED NURSES STATIONED ON WARD 5-W WHO SHARED HER VIEWS
CONCERNING THE NATURE AND CAUSE OF THEIR COMMON PROBLEMS. IT SHOULD BE
EMPHASIZED THAT BY ALL ACCOUNTS THE GRIEVANCE IN QUESTION HERE HAD
NOTHING WHATSOEVER TO DO WITH ANY COLLECTIVE BARGAINING AGREEMENT AND
THE AGENCY PROCEDURE FOLLOWED WAS OPEN TO ANY EMPLOYEE OF VAMC, UNION
MEMBER OR NOT. THE FACT THAT SEVERAL EMPLOYEES JOINED TOGETHER TO
COLLECTIVELY VOICE THEIR DISSATISFACTION WITH SOME OF THEIR WORKING
CONDITIONS DOES NOT CONSTITUTE A "UNION ACTIVITY" MERELY BECAUSE SOME OR
EVEN ALL OF THE EMPLOYEES ARE MEMBERS OF ONE UNION OR ANOTHER. INDEED,
AS WAS THE CASE HERE, WHEN MEMBERS OF TWO DIFFERENT BARGAINING UNITS,
ONLY ONE OF WHICH HAS A CONTRACT, JOIN TOGETHER TO PRESENT A COMMON
GRIEVANCE UNRELATED TO ANY CONTRACT INTERPRETATION OR APPLICATION, IT IS
ALL BUT IMPOSSIBLE TO IMAGINE UNDER WHAT CIRCUMSTANCES SUCH ACTION COULD
BE CONSIDERED TO BE A UNION ACTIVITY.
STILL FURTHER, INASMUCH AS THE RIGHT TO PARTICIPATE IN AN AGENCY
GRIEVANCE PROCEEDING DOES NOT RESULT FROM ANY RIGHTS ACCORDED TO
INDIVIDUAL EMPLOYEES OR TO LABOR ORGANIZATIONS UNDER THE ORDER, AND
BECAUSE SUCH A PROCEDURE IS EQUALLY AVAILABLE TO ALL EMPLOYEES OF THE
AGENCY, EVEN THOSE NOT COVERED BY A NEGOTIATED GRIEVANCE PROCEDURE, ANY
FAILURE OF MANAGEMENT TO PROPERLY APPLY THE PROVISIONS OF ITS OWN
GRIEVANCE PROCEDURE, STANDING ALONE, CANNOT BE SAID TO INTERFERE WITH
RIGHTS ASSURED UNDER THE ORDER AND THEREBY BE VIOLATIVE OF SECTION
19(A)(1). OFFICE OF ECONOMIC OPPORTUNITY, A/SLMR CASE NO. 334. IT MUST
ALSO BE SAID THEN, AS THE ACTIVITY INVOLVED HERE CORRECTLY CONTENDS,
THAT MANAGEMENT, EVEN IF "PUNISHING" AN EMPLOYEE FOR PARTICIPATING IN AN
AGENCY GRIEVANCE PROCEEDING IS NOT INTERFERING WITH RIGHTS ASSURED UNDER
THE ORDER. ACCORDINGLY, EVEN ASSUMING THAT MANAGEMENT AT VAMC DID
TRANSFER COMPLAINANT BECAUSE OF HER PARTICIPATION AND ROLE IN THE GROUP
GRIEVANCE, SUCH ACTION ON ITS PART CANNOT, IN AND OF ITSELF, BE SAID TO
CONSTITUTE A VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
II. THE RECORD IS VOID OF ANY EVIDENCE THAT VAMC WAS AWARE OF ANY
UNION ACTIVITY ON COMPLAINANT'S PART. IN FACT, THE INSTANT ACTION IS
THE ONLY INDICATION OF RECORD THAT COMPLAINANT HAS EVER ENGAGED IN ANY
"UNION ACTIVITY" OF ANY SORT.
III. THERE IS ALSO NO EVIDENCE IN THE RECORD THAT VAMC SHOWED ANIMUS
AGAINST COMPLAINANT'S UNION ACTIVITY WHATEVER IT MIGHT HAVE BEEN, OR
AGAINST UNION ACTIVITY IN GENERAL. OF COURSE, IT IS NOT POSSIBLE TO
SHOW ANIMUS AGAINST ONE'S UNION ACTIVITY UNTIL SOME UNION ACTIVITY IS
FIRST SHOWN. AS TO VAMC'S ATTITUDE TOWARD UNIONS IN GENERAL, THE RECORD
CONSISTENTLY INDICATES THAT ITS MANAGEMENT FULFILLED ITS RESPONSIBILITY
TO THE UNIONS IN EVERY RESPECT. IF VAMC HAD EVER EXHIBITED ANY FEELINGS
OF ANIMOSITY TOWARD ANY UNION OR ANY EMPLOYEE BECAUSE HE OR SHE WAS A
MEMBER OF A UNION, IT WAS NOT BROUGHT OUT IN THE HEARING IN THIS MATTER.
IV. IN THE ABSENCE OF ANY PROOF OF UNION ACTIVITY ON COMPLAINANT'S
PART, BUT FOR MEMBERSHIP ALONE, IN THE ABSENCE OF ANY INDICATION THAT
VAMC HAD KNOWLEDGE OF WHAT IT MIGHT CONSIDER TO BE UNION ACTIVITY,
WHETHER IT WAS OR NOT, AND IN THE ABSENCE OF ANY SHOWING OF ANTI-UNION
ANIMUS ON THE PART OF MANAGEMENT, IT CANNOT BE ULTIMATELY CONCLUDED THAT
THE COUNSELLING GIVEN COMPLAINANT AND HER SUBSEQUENT TRANSFER WAS
DISCRIMINATORILY BASED ON ANTI-UNION MOTIVATIONS. INSTEAD, THERE IS
SUBSTANTIAL EVIDENCE IN THE RECORD THAT THE TRANSFER WAS AN EFFECTIVE
MANAGEMENT ACTION TAKEN TO REMEDY THE DISSENTION AMONG SOME EMPLOYEES
ON
WARD 5-W WHICH WAS ADVERSELY AFFECTING PATIENT CARE. I AM CONVINCED
THAT THE TRANSFER ITSELF WAS BASED UPON THE REASON FOR THE COUNSELLING
GIVEN COMPLAINANT ON JANUARY 5, 1978. CONSIDERING THE FACT THAT AN
EARLY RESOLUTION OF THE PERSONNEL PROBLEMS ON WARD 5-W WAS CURRENTLY
PENDING, COMPLAINANT COULD NOT HAVE PICKED A MORE INOPPORTUNE TIME TO
ARBITRARILY REFUSE TO ANSWER A QUESTION BY A STUDENT NURSE REGARDING
PATIENT CARE AND THEREBY VIVIDLY DEMONSTRATE FOR THE FIRST TIME AN
EXAMPLE OF THE LACK OF COOPERATION IN THE WARD WHICH MANAGEMENT WAS
ATTEMPTING TO REMEDY. COMPLAINANT, BY HER UNSATISFACTORILY EXPLAINED
FAILURE TO RESPOND TO A MEANINGFUL INQUIRY, MERELY POINTED TO ONE MEANS
WHEREBY SOME PERSONNEL TROUBLE ON THE WARD COULD BE ELIMINATED. BY
COMPLAINANT'S OWN ADMISSION, A TRANSFER IS NOT UNUSUAL UNDER THESE AND
LIKE CIRCUMSTANCES.
FINALLY, AS PREVIOUSLY INDICATED, THERE IS NO EVIDENCE IN THE RECORD
WHICH WOULD SUPPORT AN INDEPENDENT VIOLATION OF SECTION 19(A)(1), AS
REGARDS THE TRANSFER. AS TO THE STATEMENTS ALLEGED IN THE COMPLAINT TO
HAVE BEEN MADE BY MANAGEMENT, NO EVIDENCE WAS OFFERED IN SUPPORT OF THIS
ALLEGATION EXCEPT FOR THE COMMENT, ADMITTEDLY MADE BY MRS. MERRIMAN, THE
CHIEF OF NURSING SERVICES, TO THE EFFECT THAT "THERE WILL BE SOME
CHANGES MADE." THIS STATEMENT IN THE CONTEXT IT WAS MADE WAS NOT SHOWN
TO BE VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER. FURTHER, THERE BEING
NO BASIS FOR FINDING A SECTION 19(A)(2) VIOLATION, THERE CAN BE NO
FINDING OF A DERIVATIVE SECTION 19(A)(1) VIOLATION.
ORDER
THE COMPLAINT IS DEVOID OF FACTUAL SUPPORT AND IS HEREBY DISMISSED IN
ITS ENTIRETY.
JAMES J. BUTLER
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 26, 1979
SAN FRANCISCO, CALIFORNIA
JJB:VAG
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
STATES SENATE AS A MEMBER OF THE AUTHORITY.